Adopted Children and Special Educational Needs

The BBC has recently published an article entitled “We’re scared of our adopted son”.  The article can be found here, and deals with what psychiatrists have started to refer to as “callous unemotional traits”. 

Children with these difficulties have been identified as being more likely to go to prison and may, in extreme cases, become psychopaths in adulthood.  The article catalogues concerns that adoptive parents have regarding children and young people that they have adopted who display these forms of behaviours.

It is important to also note that children and young people who are adopted may well also have Special Educational Needs.

All children and young people who have been adopted have, at one point or another, been considered as “looked after children”.  That is because, in order a child to be adopted they will have had to have gone through the care system and a care order made in respect of that young person.  What this means is that they will have qualified pursuant to the statutory meaning of “looked after child”. 

Research that has been undertaken by the Department for Education has indicated that the incident rate of Special Educational Needs amongst children in the care system is much higher than in the general population.

The issues that the article that have been presented by the BBC raise also indicate Special Educational Needs.  The condition that is being referred to as “callous unemotional traits” has been catalogued as being the following:

• An inability to express feelings openly and hide feelings from others.
• Inability to know the right from wrong.
• Being very cold and uncaring.
• Trying to hurt the feelings of others.
• Refusal to apologise to people they have hurt.
• Lack of remorse.
• Lack of being able to admit to being wrong.
• Lack of concern about school work.
• Lack of concern about punctuality.

Special Educational Needs are defined as being any physical or learning difficulty which makes it more difficult for the young person, as compared to their peers, in accessing education.  If a child or young person has Special Educational Needs then it is necessary for special educational provision to be made available for them.

Given the identification of this system of traits which seems to be prevalent among adopted young children, this seems to suggest an increased recognition that children who have been adopted, or children in care, are more likely to have Special Educational Needs. 

Obviously, any child or young person who is in care, or has been adopted, is likely to have faced an extremely disruptive childhood.  This is likely to either compound underlying difficulties or be the root cause of other difficulties.  In either circumstance, if those difficulties are causing an adopted child, or a child in care, difficulties in accessing education then special educational provision should be made available for them.

Often, we are finding that children in the care of Local Authorities are not receiving the special educational provision that they require for their Special Educational Needs.  This is particularly concerning given that children in the care of a Local Authority are reliant on the Local Authority to properly discharge all their duties towards them.  A child who is not in care will have a parent who will advocate their rights for them.  This means that if a Local Authority fails to properly recognise a child’s Special Educational Needs, their parent can challenge that failure through the Special Educational Needs and Disability Tribunal.  A child in care, however, faces a situation where the Local Authority also acts as their “parent” by virtue of the making of a care order.  This means, therefore, if the Local Authority is not providing the special educational provision that the child needs, there is no real parent to advocate on behalf of the child.  That is because no Local Authority social care team is likely to bring an action before the Tribunal as against its own education department.

Children who are adopted who have Special Educational Needs also face a difficult situation.  As soon as a child is adopted then their adoptive parents become their natural parents by way of operation of law.  What it also means is that the adoptive parents can become their advocate when seeking special education provision for their adopted child.

Whilst adopted children are in a slightly better position than children in care, it is still frankly outrageous that Local Authorities fail to deliver special educational provision for adopted children.  If an adopted child had remained within the care of the Local Authority, then the Local Authority would have been financially responsible for that child.  When a child is adopted, the financial obligations on the Local Authority are significantly reduced.  As such, any failure by a Local Authority to comply with their obligations to provide Special Educational Needs provision for a child who is adopted is callous.  That is further compounded when the adopted parents, who have already relieved the Local Authority of significant financial obligations to the child, are then forced to appeal to the Special Educational Needs and Disability Tribunal, often incurring additional expense in seeking expert advice and legal representation.

We have recently been instructed by many adopted parents in respective of their children with Special Educational Needs.  In each of those cases, the Local Authority has failed to properly identify the Special Educational Needs that the adopted child has, or acknowledge the necessary special educational provision that the child requires.  This goes so far as to refuse to accept that the school the Local Authority suggest is unsuitable, even in a situation where the school itself has indicated that it is. 

As with all children, if an adopted child has Special Educational Needs it is very important to identify those needs as early as possible.  As such, if the Local Authority is failing to do so, it is important for parents to seek advice in respect of securing special educational provision at the earliest opportunity. 

If you are experiencing difficulties as set out above or otherwise in securing additional support for your child from the Local Authority then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.